Maori Land Court and Appellate Court
In Re Waotu South 17 & Ormsby
237 Rotorua MB 250, 23 March 1995. Savage J
In this case the court reiterated the strict legal requirements placed on trustees, by requiring the repayment of salaries and excessive travelling expenses which trustees of this land block had voted for themselves, but which had not been approved by the court as the trust deed required. The excessive travelling expenses of one trustee in particular were found to be the joint and several liability of the trustees as a whole since payment was made with the other trustees consent. Payments up to $50 per trustee per meeting was retrospectively affirmed, in line with other trusts in the region, and pursuant to s73 Trustee Act 1956 (court may relieve trustee of liability where they have acted honestly and reasonably), as were some limited travelling expenses. The trustees were ordered to file with the court a strategic and management plan for the future of the trust.
Claim by WM Kaa and others re Maori tertiary education
Wai 431, 5 April 1995. Smith J, Deputy Chairperson
In this memo the tribunal considered a request for urgent hearing. The tribunal noted that, despite rapid growth in student fees from the mid 1980s, the trend was for more Maori to be participating in tertiary education (1.75% to 4.7% between 1988 and 1994, and Maori women up 81% between 1990 and 1994). The tribunal observed that [a]pplications for urgency are taken as a means of prioritising claims for hearing but urgency should only be afforded where there is genuine need to receive a report and irreversible consequences may flow from any delay in processing the claim. The granting of urgency upon unsubstantiated or inadequate grounds could, because of the demands made on the tribunal to hear claims, result in a proliferation of requests for urgency to the detriment of the administration and management of the hearing processes. In the absence of adequate grounds to justify an urgent hearing, urgency was refused.
Claim by Rawiri Tooke and others and a claim by Matiu Tarawa
Wai 364 & Wai 496. March 1995
The tribunal has received two claims concerning the site of former Tamaki Girls College. Tribunal directions acknowledging receipt of one of the claims (Wai 364) record that further research is required before the matter can proceed to hearing and it is to be grouped with other Auckland-Hauraki claims for hearing.
Volcanic Plateau report
Memorandum-Directions 17 March 1995. Deputy CJ Smith
A research report on claims and potential claims in the Volcanic Plateau region has been completed by tribunal commissioned researcher Brian Bargh, as part of the Rangahaua Whanui project, which aims to provide the historical background to claims that have arisen or may arise in broad regional areas. The tribunal is seeking comments on the report by 30 June 1995.
Some new claims received
Colin Clark for Whanau O Hinemataiao Puhirere Inc representing the Ngai Tarewa hapu with rangatiratanga over land at Onuku and the Akaroa District has filed a claim objecting to the representative structure for Ngai Tahu proposed in Te Runanga O Ngai Tahu Bill 1993, in particular the concept of papatipu runanga (Wai 482). The claim alleges that hapu have a rangatiratanga outside the collective rangatiratanga of the papatipu runanga concept. The tribunal in directions has asked, in light of current remedies available, including submissions to the select committee, why the tribunal should proceed to hear the matter (In claim Wai 322 similar objections were raised, and the tribunal, after hearing submissions, declined to inquire into the claim because of alternative remedies available which might render a tribunal hearing premature.)
J Asher on behalf of Kurauia hapu has made a claim to 57 acres of public domain known as Tokaanu hot springs, administered by the Department of Conservation. The claimants allege the land and springs were arbitrarily taken and seek the return of ownership to a trust to hold the land for Kurauia hapu, with current uses to continue unhindered (Wai 490).
Toahaere Falkner and others have filed a claim alleging practices and policies of Bay of Plenty Polytechnic, including the appointment process of the chief executive officer, are in breach of the Treaty and prejudicial to Ngati Makamaka hapu and other iwi and hapu groups in the catchment area for the polytechnic (Wai 497). The polytechnic is said to be an agent of the Crown. In receiving the claim, the tribunal has noted it has only recommendatory power and cannot delay or prevent the CEO appointment (Memo-directions 13 April 1995).
Greensill & Ors v Waikato Regional Council & Anor
W17/95, 6 March 1995. Treadwell J, PA Catchpole, IG McIntyre
This was an appeal from a decision of the regional council to grant consents for an oyster farm on the foreshore at Paritata Bay, Raglan Harbour. There were several appellants including local Maori.
Held: the positive effects of the proposal, mainly mild economic benefits to the region, were outweighed by potential adverse effects, including intrusion into an area used on a modest scale as a gathering place for kaimoana. As to matters raised by the Maori objectors:
- The presence of claims before the Waitangi Tribunal can have no impact on proceedings under the RMA, until the Crown acts on any tribunal recommendations.
- The absence of Maori consent is not an automatic veto to applications under the RMA. Maori issues are one among several matters to be evaluated. The council had endeavoured to provide for waahi tapu, although ultimately not to the satisfaction of the objectors. The term ancestral lands in s6 does not import European ideas of land, including the concept of high water springs, which was alien to them.
- The definition in s7 of kaitiakitanga is unfortunately all embracing, so that there is a statutory definition for a word which embraces a Maori conceptual approach, and consequently the concept of guardianship in s7 is applicable to any body exercising jurisdiction under the RMA (Rural Management Ltd v Banks Peninsula District Council W34/94 followed).
- There is an obligation for territorial authorities to consult with the tangata whenua over proposed policy statements or plans (1st Schedule cl3), and the same may apply for a request for a plan change (1st Schedule cl25(2)(ii)), but possibly only where the plan is in the course of preparation. For resource consents, the territorial authority, when deciding whether a resourceconsent should be notified or not, may consult with those potentially affected by the exercise of the discretion, and may consult unilaterally with any party. Consultation may continue even after a decision not to notify has been made. An officer of the authority may be delegated to consult and make the decision whether to notify. These points arise from Worldwide Leisure Ltd (HC M1128/94).
- Where a decision has been made to notify a resource consent, because a public hearing is required before the authority, to preserve fairness, it may not unilaterally consult with any party, although its officers may do so. Applicants are required to provide information about persons the applicant has identified may be affected by the proposal, and any steps taken to consult with such persons (4th Schedule cl1(h)). If a paucity of information is provided the authority may commission a report on the application, which would include review of these matters (s92). In addition, if it is clear from the application that there are important submissions to be made, the council officer is then on notice that the hearing could be controversial, and should seek further details. Consequently, although there are no sanctions directed against applicants for poor consultation, if extensive consultation is not undertaken for a consent in a sensitive area, the applicant runs the risk of the authority postponing matters until further information is received. There is however no statutory compulsion under the RMA on an applicant or a council officer to embark unilaterally on consultation.
- In this case some consultation was undertaken, but consultation with local Maori was limited because they refused to allow the matter to be taken to a meeting, absolutely rejecting the idea of marine farming in the bay. Therefore, even if there were a statutory compulsion to consult (and there was not), the applicant had made "genuine attempts", and could not be expected to take the matter further. Noted, that in the context of tangata whenua, consultation may mean more than "having deliberations", and encompass "taking into consideration feelings and interests". It does not mean abandoning a project if deliberations do not appear fruitful.
- The Treaty of Waitangi (Fisheries Settlement) Act 1992 had no bearing on the matter of consultation here, although it prevented consideration of commercial fishing interests of the tangata whenua. The Act is a restatement of rights, and only affects the RMA where the Minister has acted under it to protect customary rights, eg by way of a gazette notice preventing the granting of marine farming licences. Noted however that if a joint commercial venture with local Maori had been proposed, the 1992 Act might preclude consideration of the Maori commercial interest in the fishery as relevant to a decision under the RMA.
- As to waahi tapu: "It appears that various members of the tangata whenua are entrusted with details of waahi tapu but that information is not generally shared with iwi or hapu. Thus a kaumatua may be aware of areas of importance within the concept of waahi tapu and may pass that information on to a person or persons whom he selects but the reasons for, and the importance of, any particular waahi tapu may not be generally known. The tangata whenua as between themselves accept without question the concept of waahi tapu and further accept without question the word of a person who has particular knowledge of a particular site or area. Thus if a kaumatua simply says that a place is waahi tapu then that is the end of the matter".
At the council hearing submissions were made in camera concerning waahi tapu. The council moved the boundary of the proposed farming area 50 metres further seaward. The Maori objectors said this failed to appreciate the waahi tapu concept as outlined above. The tribunal declined to order the applicant out of the hearing before it, and no further evidence of waahi tapu was led. Consequently, while recognising the Maori reluctance on this matter, the tribunal upheld the decision of the council, having no further evidence to consider, stating "that tangata whenua are not a decision making authority and cannot simply assert a proposition and leave the Tribunal bereft of evidence to enable an acceptable provision to be made for protection of waahi tapu."
- With regard to s8 (principles of the Treaty of Waitangi), regard must be had to evidence showing this was a customary Maori fishing ground.
[ed: this case makes some important comments about consultation with Maori under the RMA, and the treatment of waahi tapu issues]
Aqua King Ltd v Fleetwing Farms Ltd & Anor
W19/95, 28 March 1995. Kenderdine J, RG Bishop, JD Rowan
Two companies had applied for consents for marine farming over the same area and both had their applications declined by a district council. The tribunal here was being asked to decide which should have its appeal heard first. A factor the tribunal considered was delays occasioned to each applicant by requirements from the council for further consultation with Maori. Several points of interest were made: - The consultation required of an applicant under cl1(h) 4th Schedule RMA when filing an application is more than posting the application and seeking comment, which is simply dissemination of information and not consultation (Air NZ v Wellington International Airport CP 403/91 followed).
- Section 92(4) which permits a consent authority to seek further information from the applicant to give the authority a better understanding of the proposed project and its effect on the environment, includes the ability to require further consultation with iwi.
- The duty on an applicant to consult is separate from the duty of consultation with iwi required of a council officer when considering an application. The latter duty arises under Part II and principles of the Treaty of Waitangi.
[ed: this case adds to the comments in Greensill above]
Tawa & Ors v Bay of Plenty Regional Council
A18/95, 24 March 1995. Sheppard J
This was a Planning Tribunal report to the Minister of Conservation concerning an application for a coastal permit to extract sand for building aggregates, from Otamarakau Beach. Extraction would take place below high water mark. A hearings committee of the regional council approved the application. Mr Tawa and Otamarakau Marae Trustees appealed the decision on several grounds.
Held: personal meetings with Mr Tawa as representative of the trustees and an invitation for him to call a full meeting of trustees, which he declined to take up, constituted adequate consultation. Greensill v Waikato Regional Council (W17/95) was referred to as supporting the view that genuine efforts at consultation are all that is required and absence of consent is not determinative against an application. The council had also approached Mr Tawa about the application. Other local tribes had also been approached.
The presence of a claim before the Waitangi Tribunal did not affect the power to hear and grant the application. Nor would granting the application diminish the possibility of redress to Ngati Makino if their claim was found good, by revesting of the foreshore, and compensation for sand taken if need be. Comments to similar effect in Sea Tow Ltd (A129/93) referred to.
The council had not acted wrongly in considering the interests of other tribal groups claiming to have interests in the area. Once aware of those competing interests the council was correct in avoiding making any preference among the iwi in its consultation process. A condition of the approval given was that kaumatua of all 3 iwi be given the opportunity, once extraction began, to verify whether an area being mined contained waahi tapu or other sites of importance.
A concern that the council had inadequate resources to monitor Maori concerns was also dismissed for lack of evidence.
Turning to other matters, the mining, if carried on within limits and terms imposed re tangata whenua involvement, was consistent with the proposed regional coastal environment plan - which follows from the NZ Coastal Policy Statement.
The tribunal itself, in considering whether Treaty principles had been taken into account under s8, noted that the applicant was of Ngati Rangitihi descent and active on local marae, and said to be respectful of waahi tapu. The likelihood of bones being located in the mining area - below high water mark - was low. As to disputes about which tribe had mana over the beach area concerned, the tribunal should not have regard to disputes about which tribes properly exercise rights over areas, but focus on sustainable management of the resource. A statement in Luxton v Bay of Plenty Regional Council (A49/94) to this effect was followed.
Otorohanga Heritage Protection Group v Otorohanga District Council
A20/95, 16 March 1995. Bollard J
This decision, discharging an interim enforcement order, briefly records a compromise agreement over redevelopment of the Otorohanga Town Hall, which includes ongoing discussion with and input from Maniapoto people of the district. They will provide 2 representatives on a community trust responsible for design and development on the site.
Phares & Anor v TOKM & Te Runanga o Te Whanau Tribal Authority
CP389/94 HC, 23 December 1994 and 8 March 1995. Grieg J
In the 23 December judgment, the court refused an application challenging the allocation of leases of fisheries quota to Te Runanga on the grounds that the plaintiffs and the hapu they represented had not been given an adequate opportunity to make submissions to the Fisheries Commission. The court found that the dispute was well known to all parties and that time had been given for further late submissions. The court also noted that it was not being called upon to substitute its view on allocation for that of the expert tribunal (the commission), and that it would be inappropriate for it to do so. In the 8 March decision, the court awarded costs against the plaintiffs and in favour of Te Runanga (the commission did not seek costs), and rejected the plaintiffs arguments that the action was necessary to protect the interests of all parties, little or no disruption to quota allocation would have occurred because the plaintiffs deliberately limited the relief sought, and a costs order on the plaintiffs would make reconciliation within the Apanui rohe more difficult.
[ed: the commission in its latest newsletter comments that the case is a warning to groups challenging allocation of leased quota that they can expect to face bills for court costs if their actions are unsuccessful]
Mangatu Inc & Ors v Valuation NZ
LVP 22/95-33/95, 10 March 1995. MacLean J, EC Bowis, MG Cotterill
Various Maori incorporations on the East Coast owning collectively 73,007 hectares of Maori freehold land valued at over $40 million, objected to a 3 yearly re-valuation by Valuation NZ, on the basis that Te Ture Whenua Maori Act 1993 imposed restrictions on alienation which should have been taken into account in the re-valuation, which was fixed on the willing seller/willing buyer approach.
Held: rejecting the appeal, that if, when land is sold, the buyer takes the land free of restrictions, then value is not affected, Thomas v Valuer-General (1918) NZLR 164. Other cases quoted where restrictions affected valuation (Valuer General v Trustees Christchurch Racecourse HC AP343/92 - a private Act was required for a sale: Wanganui Racecourse Trustees v Valuer General CNZ Valuer Vol 25 1982 Report - ministerial consent required for a sale of reserved land), could be distinguished because the restrictions were more severe than those affecting land under Te Ture Whenua Maori Act where there is a "clear statutory mechanism for processing of proposed sales and obtaining consent." It was too early in the process of application of the 1993 Act for the tribunal to be convinced that the Act will have any effect in preventing sales of Maori freehold land to non-Maori where there is no-one in the preferred class of alienees interested and the necessary majority of the shareholders has been obtained. There is no persuasive evidence the Maori Land Court will use its discretion in such cases to not permit such sales. Accordingly the constraints under the Act are not a charge in terms of the Valuation of Land Act 1951 s2 which defines "land value" as the value an owners estate would realise on sale if unencumbered by mortgage or other charge. Noted also that Maori incorporations can mortgage their lands with little restriction under the 1993 Act.
Shortland v Accident Compensation Corporation
269/94, ACC Appeal Authority, 12 September 1994. PJ Cartwright
The appellant injured his knee in a farming related accident. He was awarded a sum in compensation by the ACC, which, on appeal, was increased by a "modest" amount to take account of a "loss of mana" through being unable to undertake marae associated responsibilities, which the ACC accepted made the effects of the injury more serious than for some other accident victim (it was argued that the injury meant the appellant could not stand on each occasion visitors entered the meeting house, which marae protocol demands). The appellant here sought an application for leave to appeal the authority s decision as a matter of law to the High Court.
Held: granting the application, that there was a question of general importance to be considered, namely, how much weight cultural factors should be given in the exercise of discretion to grant further compensation under s79 Accident Compensation Act 1982, and, if mana had been lost, whether that loss could be one of degree (the appellant argued that if a loss of mana was admitted, mana could not be lost in part only, and maximum compensation must be paid).
[ed: this case is noted in light of the recent out of court settlement reached with the appellant. The door therefore remains open for future similar cases on cultural factors]
The Maori Assembled Owners Regulations 1995
1995/83. 18 April 1995
These regulations cover all aspects of meetings of assembled owners, including appointment, objections to appointment, and voting powers of proxies; postal voting and objections to postal votes; and the conduct of meetings. To consider and pass a resolution to sell land, a quorum and vote in favour by the owners of 75% of the beneficial freehold interest is required. For leases, the percentage varies with the term of the lease:
Term Quorum and vote in favour required More than 42 yrs 75% 21-42 years 50% 15-21 years 40% 7-15 years 30% Less than 7 yrs 20%
A resolution to incorporate requires a quorum and vote in favour by only 15% of the beneficial ownership, all other resolutions require a quorum of owners representing 40% of the beneficial ownership to consider the matter, but not being less than 10 owners or one quarter of the owners (dead or alive) whichever is less. To pass the resolution, those voting in favour must hold a greater aggregate share in the land than those voting against (cls32-35 & cl45). The regulations also provide for meetings to consider notices of intention to exercise a first right of refusal from persons in the preferred classes of alienees, where there is a proposal to alienate an interest to persons outside the preferred classes of alienees. Clause 43 provides that the meeting will decide upon fair and reasonable terms and conditions for the alienation, then invite persons from preferred classes who have earlier filed notices of intent, to make an offer on those terms and conditions. If they do, the meeting closes at that point. The regulations replace the Maori Assembled Owners Regulations 1957.
[ed: these are important and long awaited regulations for conducting business under Te Ture Whenua Maori 1993. Provisions concerning consideration of offers by persons from the preferred classes of alienees may be contentious and will require vigilant chairpersons to make them work effectively and avoid litigation]
Adoption Amendment Act 1995
1995 No 4. 23 March 1995
A short amendment altering the definition of social worker to include, where adoptions of Maori children are contemplated, members of the Maori community nominated by the Director-General of Social Welfare.
Maori Purposes Bill 1995
No 78-1. Hon John Luxton
This bill would make minor amendments to several acts, the most substantial being amendments to Te Ture Whenua Maori Act 1993 to make provision for forestry rights, as defined in the Forestry Rights Registration Act 1983. It is proposed to remove the requirement that the Maori Land Court confirm a grant of a forestry right where the grant is made by a Maori incorporation or trust constituted under the 1993 Act. A special resolution of shareholders of an incorporation would be required where the forestry right was for a term exceeding 21 years. The bill also proposes removing the power of the chief executive of Te Puni Kokiri under the Maori Affairs Restructuring Act 1989 to make discretionary advances or other assistance to any Maori for the purposes of assisting them in any enterprise. It also proposes removing the power to appoint honorary community officers under the Maori Community Development Act 1962. Changes to the Maori Trustee Act 1953 are also contemplated, so that unclaimed money held in the Common Fund of the trustee may be put into the General Purposes Fund if no claim to it is made after 12 months. Other minor amendments concerning these funds would also be made. Submissions close 26 April 1995.
Crown Pastoral Land Bill 1995
No 86-1. Hon Denis Marshall
Among other matters, this bill provides that pastoral leases and occupation licences (originally granted under the Land Act 1948) may be reviewed by the Commissioner of Crown Lands with a view to their sustainable management (cl20), including the restoration to full Crown ownership and control of land which has high inherent values (ie natural resources and recreational, cultural and historical values - cl2), and the freehold disposal of land "capable of productive use". Appropriate public rights of access and enjoyment are also to be created over these lands. When carrying out these reviews the commissioner is to "take into account", "to the extent these matters are applicable", the objects outlined above and "the principles of the Treaty of Waitangi" (cl21). Preliminary proposals are to be developed by the commissioner with the holders of leases and licences, then they must be notified, including notification to the iwi authority of the area (within the meaning of the RMA 1991). The commissioner must also consult with the iwi authority (cl25). The commissioner may then put a substantive proposal to the lessee or licensee, but only after having considered, all written submissions and, "all matters raised by the iwi authority ... during consultation" (cl27).
[ed: this bill institutes a long awaited review of large South Island pastoral properties under long term leases and licences, and has important implications for the settlement of the Ngai Tahu claim. Submissions close on 26 May 1995]
Claim Settlement Proposals - recent comment
Rt Hon JB Bolger: ... the Government has extended, at Maori request, the date for the closure of submissions on the settlement package from 19 May to 31 August 1995. The invitation to Maori claimants to sit down with the Government and negotiate to resolve their claims is still on the table. .... The Government has not asked Maori to accept $1 billion or any other figure. The Government has said that it is prepared to vote $1 billion over a number of years to the Crown s negotiators to negotiate with Maori (NZPD 14 March 1995 p6049).
Moutoa Gardens - special debate
Hon DAM Graham: The Waitangi Tribunal completed hearings on the river aspect of the Wanganui claim, Wai 167, in September 1994. Its report is expected in May 1995. The lands aspect of the Wanganui claim is not at present scheduled for hearing by the Waitangi Tribunal before July 1995. Research is underway by the claimants and it is uncertain when this part of the claim will be ready for hearing. The claim has been the subject of direct negotiation with the Crown. On the release of the report from the Waitangi Tribunal, negotiations are expected to resume on the river aspects of the claim and on the completion and consideration of the claimants research into the lands aspects of the claim. .... I am not sure whether the people who are occupying the gardens at the moment are the same people who are pursuing the claim before the Waitangi Tribunal. But if they are not, there is nothing to stop them from filing a claim .... My advice from the tribunal staff is that the river claim in fact includes the river banks. As the gardens are part of the banks, one would expect the claim [Wai 167] to include that as well (NZPD 16 March 1995 p6204).
NZ Universities Law Review
Vol 16 No 2 December 1994
Contains two articles of interest: - "'The Queen s Sovereignty Must be Vindicated'": The 1840 Rule in the Maori Land Court", by Bryan D Gilling (p136). Traces the origins of the the 1840 rule, which was closely related to the issue of sovereignty and maintaining the Pax Britannica. Also notes it was not rigorously or consistently applied particularly in early court determinations, he suggests partly because the court was a highly politicised institution, with close links to the native department and its concerns.
- "Maori and the Health Reforms: Promises, Promises", by Stephanie Milroy and Annie Mikaere (p175). Traces a history of Maori health including the epidemics after early contact with Europeans, through to modern health reforms. Concludes that current reforms are failing to provide the Maori right to have their standard of health restored to a level comparable to that of the healthiest peoples in the world, and to be in control of that restoration process. Currently they are slotted into a system in which Pakeha control and values predominate. Suggests a more rational approach is an autonomous Maori health structure with its own budget and accountability to iwi.
NZ Recent Law Review 1994 Part IV p376
"Constitutional Law" by FM Brookfield
Looks at developments in law since 1994, from the PC decision in NZ Maori Council v A-G (Broadcasting assets) case, Te Runanganui o Te Ika Whenua v A-G concerning claims over rivers, dams etc, through to determinations on the electoral option issue before the Waitangi Tribunal and High Court. Notes that the case of Tavita v Minister of Immigration  2 NZLR 257 in which the Court of Appeal affirmed the need for Ministers to have regard to international obligations in immigration matters, may strengthen the case for the courts to recognise a presumption that Parliament will not legislate contrary to obligations raised by the Treaty.
Victoria University of Wellington Law Review
Vol 24 No 4 Dec 1994
Contains two articles of interest:
- "Custom law: Address to the NZ Society for Legal and Social Philosophy , by Chief Judge ET Durie (p325). A call for a comprehensive study of Maori law on a legal and anthropological basis, and a brief listing of the major features such a study would be likely to find. "... it is the experience of the Waitangi Tribunal that reliance on expert witnesses in ad hoc situations can produce uneven results. The presentation of generalised opinions by Maori elders and scholars not experienced in legal analysis also leaves the ultimate interpretation to untrained adjudicators without access to a coherent lego-anthropological text." - "The Treaty of Waitangi and the Sealord Deal" by Justine Munro (p389). Possibly the most thorough commentary on the fisheries settlement published to date. It concludes that the deal was a pragmatic response to an immediate need, but trusted in uncertain economic outcomes and failed to ask the hard questions which are the building blocks to legitimacy. All involved acknowledged the settlement was not thoroughly in accord with Treaty principles, and it deviates in important respects from those principles. The deal is argued to be an illegitimate extension of kawanatanga, because Maori are brought under the Crown s vision, exchanging a Treaty right for a Crown received title, demonstrating a Crown inability to accept legal pluralism. With regard to rangatiratanga, the deal follows the Crown approach of settling on the basis of compensation for rights lost, with a failure to focus on the objective of tribal restoration. The value of quota could drop, resource rentals for use of quota could rise, and quota requires conversion, with resources many iwi do not have, to produce a viable economic base. It is argued that the Crown also has responsibility for ensuring relativities among tribes. The settlement attempts to limit Crown liabilities. Overall the settlement represents a wrong turn , and public debate is required over principles appropriate to future settlements. [ed: many of the points raised are relevant to the debate over the current claim settlement proposals]